Some Thoughts About The "Downunder" and "Kookaburra" case

I have been amazed at the outpouring of emotion about the decision by the court last week in favour of Larrikin Music in its plagiarism suit against EMI Music.

This is in relation to whether “Downunder”, the iconic Aussie song from Men At Work, infringed “Kookaburra Sits In The Old Gum Tree“, the iconic song written for a Girl Guide's Jamboree by Marion Sinclair in 1932. (Note for the publisher: the use of the song at this link does not show a (c) copyright line denoting ownership!)

The court found that the flute riff in the Men At Work recording was derived from the Marion Sinclair work…

Ok – so that should reasonably be it. The two sides went to the umpire for a ruling. The two arguments were made. The referee issues his determination. Now the two sides retire to the dressing room waiting for the costs and damages ruling… And that is essentially what they did.

But because the two songs are both quite iconic Australian songs, there was quite a bit of a media frenzy. And the public has become quite interested and emotional about the whole thing.

What is surprising to me is the level of support for the Men At Work side of the story – certainly on Face Book – where there are two groups that have been formed. One is “You Can't Sue Men At Work For That Much!“. Another is “The court decision against Men At Work is RIDICULOUS“(sic).

This case and the ensuing furore is actually a pretty good example of the ignorance of the public, and in many respects of the musicians and songwriters who form a good part of at least one of these groups.

The fact is that it is not Men At Work that is being sued in any event. They are the “Artist” that recorded the offending song. The record company were initially joined in the legal action, as the owner of the copyright in the recording, but they settled relatively early and out of court.

The court stoush was actually between the respective publishers representing the rights that they hold that were assigned to them by the songwriters.

A lot of the heat in the postings in FaceBook from supporters of the latter group is about how it is morally wrong to sue Men At Work because they did so much for the economy of Australia, how “Kookaburra” is part of our culture and shouldn't be able to sue anyone for using it and how the boys from Men At Work shouldn't have to pay for doing something that was not reprehensible etc…

The rational facts of the situation, that I believe are totally misunderstood by these people are as follows:

1. In reference to the first group mentioned, there is no ruling yet from the judge as to damages, so to worry about the quantum of damages before it has been announced seems a bit premature to me.

2. As far as the realistic payment of damages, we can assume that the law suit itself probably cost each side somewhere between $750,000 and $1.5M conservatively. This would have been funded in each instance by the publishing companies that own the rights to the songs: Larrikin Music in the case of “Kookaburra” and EMI in the case of “Downunder”.

3. In most modern publishing assignment agreements from writers to publishers there is an indemnity clause that provides that the writer warrants that the work he or she is assigning is original. In the case of a work that is found to have infringed, clearly that is not the case and as a result one would expect for the publisher to invoke the indemnity clause and, as a consequence, to be able to recover its costs from the writers. The costs would include the natural damages, and punitive damages that may be awarded, and the costs of running the case.

4. Let's assume for arguments sake that the court determines that 25% of the royalties associated with Downunder are to be awarded to Larrikin henceforward, and that there is a nominal damages amount of $100,000 awarded. (I am not suggesting for one minute that this will be the court's decision; it is just there to create a construct). And let's say that both sides are told that they have to cover their own costs.

The impact on the songwriters would largely be the fact that EMI would want to recover its legal costs…

Because the rest of the story is this: The song has already seen the best of its selling period, during the heyday of Men At Work, more than 20 years ago. The songwriters would have been paid their royalties, paid their taxes and then spent the money on wine, women, and song, and the odd investment in real estate, stocks and bonds and whatever rock'n'roll stars do with their ill gotten gains. They are not going to forfeit very much at all… So virtually no loss for them. Their publisher, EMI, has a pretty solid balance sheet, so the money is going to be a drop in the bucket to them in any event, and, over time, they will get to recoup it a dollar at a time from the ongoing performance and mechanical revenues generated by the song over the period of copyright – the next 70+ years!

Meanwhile the impact on Larrikin is pretty extraordinary. As is the impact on the value of “Kookaburra”. This song, regarded by many as being a traditional public domain song is now known throughout the world of music copyright as being a title that is still in copyright with a publisher that is prepared to vehemently and doggedly protect its rights. The benefits to the estate (since the writer is dead) will be significant, though not necessarily immediate (unless the judge is very generous in setting damages).

The impact on songwriters is also interesting.

Some people have said to me that this will make it difficult for writers to write because they will be concerned as to whether they have accidentally taken material from a song that is in copyright. I think that is highly unlikely. The fact will remain that indemnity clauses feature in songwriter assignments. They may get rewritten in the light of this judgment.

What I think is more likely is that songwriters who believe their work has been infringed, may take a more “active” stance in looking to their publishers to pursue their rights. Because of the consolidation of ownership of rights among a relatively small group of major publishing companies this may produce some interesting situations over the next few years, as publishing companies are forced to consider suing their own affiliate companies (which of course is unlikely to happen) but will produce other solutions; as publishing companies are outed by songwriters who feel that their publishers are not sufficiently responsive to the writers' needs; as writers who have not assigned their works to publishers and own their own copyrights start to understand that owning the rights to your song and fighting for those rights are two different things and that there are benefits to not being your own publisher when it comes to the affordability of legal representation…

To be continued…

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